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In R and Thompson v Secretary of State for the Home Department the UK Supreme Court upheld the decisions of the Divisional Court and the Court of Appeal that inclusion on the Sexual Offences Register for the duration of an offender’s life was in breach of the ECHR. Statutory notification requirements for sex offenders were first introduced in the UK by section 1(3) of the Sex Offenders Act 1997, later amended by the Criminal Justice and Courts Services Act 2000. These provisions were repealed, and now, section 82 of the Sexual Offences Act 2003 imposes a duty on anyone sentenced to 30 months’ imprisonment or more for a sexual offence to notify the police of where they live and of any travel abroad. There is no right to a review of these notification requirements, and they endure for “an indefinite period”, as the Act terms it, which is essentially the remainder of a person’s life.

The respondents, R and Thompson, sought judicial review, contending that such absence of a right of review breached their right to privacy protected by Article 8 of the ECHR. In the Supreme Court, Lord Phillips emphasised that the core of the case was whether the interference with offenders’ Article 8 rights is proportionate, given the legitimate aims of the prevention of crime and the protection of the rights and freedoms of others. He focused on three questions: “(i) What is the extent of the interference with article 8 rights? (ii) How valuable are the notification requirements in achieving the legitimate aims? and (iii) To what extent would that value be eroded if the notification requirements were made subject to review?” (para. 41).

He acknowledged the necessity for the authorities to be aware of the location of persons convicted of sexual offences that are being actively managed or supervised, noting that this level of supervision is determined, in part, by the risk of reoffending they pose (para. 45). When a person is subject to lifetime notification requirements but no longer poses any significant risk of committing further sexual offences and this is demonstrably the case, Lord Philips felt it would be pointless to maintain notification requirements given the incursions on Article 8, and indeed from a pragmatic sense felt it overburdened the responsible authorities (para. 51). This is an interesting and logical mix of principled and practical argument. Lord Phillips, at para. 57, concluded that “there must be some circumstances in which an appropriate tribunal could reliably conclude that the risk of an individual carrying out a further sexual offence can be discounted to the extent that continuance of notification requirements is unjustified.” He emphasised the viability of review in other jurisdictions, including Ireland, and noted that “This does not suggest that the review exercise is not practicable.”

In Ireland, s 8(3)(a) of the Sex Offenders Act 2001 requires notification for “an indefinite duration” if the sentence imposed on the person in respect of the offence concerned is one of imprisonment for life or for more than two years, but s 11(1) allows for a court application to discharge this obligation on the ground that the interests of the common good are no longer served by his or her continuing to be subject to them. However, such an application cannot be made before the expiration of ten years from the date of the person’s release from prison.

Despite some predictable media coverage (see the Sun, “Rapists win new legal rights”), the decision is narrow in scope, and concerns the lack of review only rather than compromising the legitimacy or legality of the Register itself. Indeed, Lord Rodger emphasised that he saw “no basis for saying that, in themselves, the notification requirements, including those relating to travel, are a disproportionate interference with the offenders’ article 8 rights to respect for their family life, having regard to the important and legitimate aim of preventing sexual offending” (para. 64).

The Crime and Security Act 2010, amending the scheme of DNA retention in England and Wales, was given royal assent earlier this month. Following from the decision in S and Marper v UK, as previously blogged about here and here, the UK was forced to revise its scheme of DNA retention in England and Wales.

The S and Marper decision prompted a lengthy consultation process by the Home Office, characterised by a reluctance to amend the law relating to the scope of the database. The consultation paper, Keeping the right people on the database: Science and public protection , ostensibly aimed “to provide a proportionate balance between protecting communities and protecting the rights of the individual”, although the lack of a robust rights-focus is noticeable throughout, while the rhetoric of risk avoidance and public protection is to the fore. The Home Office recommended the implementation of the S and Marper v UK decision through the destruction of DNA samples after six months, whether the individual goes on to be convicted or not; by permanent retention of DNA profiles after conviction; and retention for twelve years after arrest for a serious violent or sexual offence or terrorism-related offence and six years for other offences. These periods were chosen based on the likelihood of offending by people who have been arrested and not convicted, drawing on research included in Annex C to the paper which purports to show that 52% of re-offending happens within six years and two-thirds of re-offending happens within 12 years. Read more…

The Bill provides for the taking of various categories of samples, both for purposes of establishing or ruling out involvement in the commission of a specific offence, and for the creation of DNA profiles to be kept on the newly established statutory DNA database.

As regards taking DNA samples from arrestees, the Bill limits the range of relevant offences to serious crimes, such as firearms offences, and those which have a minimum punishment of five years. Thus, the proposed Irish approach to sampling in terms of its scope complies with and in fact surpasses the demands of the Grand Chamber in S. and Marper v UK which found the English scheme of blanket sampling and retention of DNA from arrestees for any recordable offence to be in breach of Article 8.

Moreover, the power under the Bill to take a sample from a detainee for the reference index of the Database does not apply to children below the age of 14, again indicating that the drafters are treading cautiously due to the statement in S. and Marper that that the retention of unconvicted persons’ data may be especially harmful in the case of minors “given their special situation and the importance of their development and integration in society”.

However, the procedures in Part 10 concerning the destruction of samples and profiles and the removal of profiles from the Database ought to be revised. The “default destruction period” for samples taken from detainees or offenders in the context of investigations is three years from the taking of the sample, and the same period applies to evidential samples when proceedings are not instituted, or after acquittal or discharge. However, these default destruction periods may be extended by the District Court. The equivalent Scottish law, as cited in S. and Marper, permits a similar extension by the Sheriff Court but for two years only (Criminal Procedure (Scotland) Act 1995, s. 18A), and a similar limiting qualification should be added to the Irish Bill.

The Equality and Human Rights Commission in the UK has warned the UK Government that the use of body scanners at UK airports may not be lawful. The Commission, in a letter to the Secretary of State for Transport, Lord Adonis, outlined its concerns that the use of the scanners may be discriminatory, and may contravene the right to privacy. Moreover, the absence of a strict policy on how passengers are selected for scanning and the lack of a monitoring system is cause for concern.

A further problematic aspect of the scanners which was not addressed in the letter is the vetting process for those persons observing the images. In addition, stringent safeguards are necessary as to the destruction of the images after screening. Given that the Minister for Justice, Dermot Ahern, has expressed his support for such a counter-terrorism tactic, it is crucial that these issues are addressed before any equivalent policies are introduced in Irish airports.

Two men convicted of murder are challenging the mandatory life sentence prescribed for murder and treason in section 2 of the Criminal Justice Act 1990, on the grounds that it contravenes Bunreacht na hÉireann and the European Convention on Human Rights.
In essence, the men are alleging that mandatory sentencing scheme in Ireland breaches the separation of powers and the doctrine of proportionality. Few people imprisoned for life in Ireland are likely to serve this full sentence – so, the Minister for Justice, following a report from the Parole Board, will direct release.

Their arguments were advanced previously in the High Court in Whelan and Lynch v Minister for Justice, Equality and Law Reform [2007] IEHC 374, where Irvine J rejected their challenge. There the plaintiffs argued that section 2 amounts to a sentencing exercise by the Oireachtas and thereby offends the doctrine of the separation of powers; that the absence of discretion of the trial judge offends the doctrine of proportionality; and that the direction by the Minister for Justice to release a prisoner serving a life sentence represents a judicial function, thus offending the separation of powers. Moreover, the men contended that they suffer inhuman and degrading treatment, contrary to Article 3 of the ECHR, due to the uncertainty of their imprisonment. They further alleged that Articles 5 and 6 are breached by the role of the Parole Board and the process whereby the Minister considers the continued detention, given that the former requires judicial determination of detention and review on a regular and frequent periodic basis and the latter protects a fair trial.

In rejecting all these contentions, the High Court relied on Deaton v. Attorney General [1963] I.R. 170 and Osmanovic v. DPP [2006] I.E.S.C. 50 to emphasise that mandatory sentences have never been viewed as unconstitutional. Indeed the High Court further stressed that judicial discretion in fact is impacted upon by laws which directs the court as to how certain evidence must be treated by at trial, and by requiring mandatory consequential orders to be imposed following upon conviction for road traffic offences, for example.

Regarding proportionality, the court differentiated the right to proportionality in sentencing (required where a trial judge is vested with a discretion as to the sentence that may be imposed) from the constitutional concept of proportionality which in this context is concerned with the public good to be achieved by the deprivation of liberty. The constitutional significance of the right to life, the harm wreaked by a killing on families (as protected by the Constitution) and the unique nature of the offence of murder were relied upon to conclude that s2 was not in breach of the doctrine of proportionality.

Furthermore, no breach of the separation of powers was found on the basis that the role of the court ceases once sentence has been passed and it is then up to the executive to carry out the sentence and, if appropriate, to exercise its rights of clemency. Indeed, in exercising his right to commute or remit punishment, the Minister was seen to be fulfilling the role afforded by Article 13.6 of the Constitution.

As regards the ECHR, the plaintiffs acknowledged that they are unlikely to serve out their life sentence and thus the High Court felt their sentences would not be such duration or unwarranted severity that would breach them within the scope of Art 3. Furthermore, the court did not see a distinction between the plaintiffs who could not anticipate their likely release date from other prisoners who are serving lengthy prison sentences. Moreover, the Court rejected arguments based on Articles 5 and 6 on the basis that the mandatory life sentence for murder is entirely punitive, and so their trial satisfied the requirements of Article 5(1) and they have no rights to a review by an independent body of their detention under Article 5(4) or Article 6(1). Similarly the intervention by the Parole Board and or the first named defendant in reviewing their continued detention was not viewed as a sentencing exercise.

Whether such a resounding rejection of their arguments is replicated in the Supreme Court remains to be seen.

Yesterday (as reported in the Irish Times) saw the publication of Rape and Justice in Ireland, a Rape Crisis Network of Ireland book, written by Conor Hanly of NUIG with Dr. Deirdre Healy and Stacey Scriver.

The book is the result of a four‐year study into the process of prosecuting rape cases in Ireland, which sought to unpack the reasons for the number and proportion of cases that fail to reach court and result in a guilty verdict. It found that approximately one third of rape cases reported to the Gardaí are prosecuted by the Director of Public Prosecutions. The use and prevalence of alcohol, poor reactions from the Gardaí and evidential problems have been highlighted as contributing to this high attrition rate.

Previous research has indicated that the extent of victimisation in Ireland for sexual offences is remarkably high. The Sexual Abuse and Violence in Ireland Report, published in 2002, indicated that some 42% of women and 28% of men reported sexual abuse or assault in their lifetime, with ten per cent of women and three per cent of men experiencing penetrative abuse. In addition to and compounding the problematic levels of victimisation, disclosure of sexual violence to professionals was found to be low. In the context of adult sexual assault, only one per cent of men and 7.8% of women reported their experiences to the Gardaí, with slighter higher rates of reporting to medical professionals and counsellors/therapists. This trend of low reporting was reiterated by the Rape Crisis Network in 2007. Moreover, “approximately 1% of these incidents [of sexual offence] will end in conviction with 95% of cases reported to the Gardaí falling out of the system prior to any adjudication by the courts.” The declining detection rate for sexual offences in general is also cause for concern, given that it has fallen from 62% in 2003 to 55% in 2007. These figures emphasise the significance of the book Rape and Justice in Ireland which explores exactly why so many rape cases are lost from the criminal justice system.

However, on a more positive note, the detection rates for rape offences increased from 44.2% in 2003 to 57.5% in 2007. Moreover, once cases are reported and detected, the prosecution rates are favourable. The 2007 Annual Report of the Director of Public Prosecutions indicates that of non-indictable sexual offences prosecuted in the Central Criminal Court percentage of convictions 86% resulted in conviction in 2006, 90% in 2005 and 93% in 2004. For cases prosecuted on indictment in the Central Criminal Court the conviction rates for rape for the same years were 82, 85 and 81% respectively, for attempted rape it stood at 100% each year, and for aggravated sexual assault it was 100% in 2006 and 2005, and 50% in 2004. This suggests that improvements at the “front end” of the criminal justice process may be particularly pertinient in improving the prosecution and conviction rate for rape and other sexual offences. This echoes one key recommendation of Rape and Justice in Ireland that Gardaí need to keep in regular contact with rape complainants, and that no attempts should be made to discourage victims from proceeding.

As is reported today in the Irish Times, the Minister for Justice Dermot Ahern is currently considering reform of the bail laws. Work is beginning on a new Bill and legal advice sought regarding the possible refusal of bail to an individual who may commit any offence while on bail, rather applying to the commission of serious offences as is currently the situation under the Bail Act 1997. Consideration is also being given to the proposal that courts should consider the need to protect the public and the safety of an individual when deciding whether bail should be refused.

While the entitlement to bail is not a constitutional right, it represents “a recognition by the Courts that a person presumed to be innocent shall not have his liberty interfered with unnecessarily pending his trial on a criminal charge” (In Re Criminal Law (Jurisdiction) Bill 1975 [1977] IR 129). The proposed amendments signify a further shift from liberal due process norms which centre on equality, liberty and the presumption of innocence, to a criminal justice model which places more focuses on a nebulous conception of the public and its needs. Indeed, it is arguable that the latter proposal is mere windowing dressing in a bid to be seen a cognisant of community “interests”/ “rights”, given that under the common law bail’s objective encompass “preventing the evasion of justice, either by the accused absconding; by the accused interfering with witnesses; or by the accused destroying, concealing or otherwise interfering with physical evidence” (People (DPP) v Ryan [1989] IR 399 ) which seems to include matters of individual/public safety.

The refusal of bail on the basis of possible future offending essentially allows the court to affect an individual’s liberty due to his character and past record, rather than on a legal finding of guilt. In a liberal democracy that purports to value due process norms and principles, only the evasion of justice itself, rather than the possibility of a further offence being committed, should merit the restriction of the presumption of innocence. This sees the integrity of the trial process as more important than public protection, an unpopular sentiment in political discourse.

In addition to rights-based concerns, empirical evidence suggests that the commission of offences while on bail is not determined by the legal regime in place, thus undermining the need for future legal amendment. Indeed, although the number of offences committed by persons on bail decreased in the years immediately following the Bail Referendum (which first allowed refusal on preventative grounds for serious offences), the implementing 1997 Act did not come into effect until 15 May 2000. Thus, it seems that the decrease was affected by matters independent of the law reform, paralleling the diminishing crime rate in general at that time.